Column: The workaround to raise government taxes is legal, but tricky


The failure of a transportation tax to qualify for the ballot this year deprived San Diego County, among others, of an interesting test case: how well, or poorly, will citizen initiatives work for fund the government?

The half-cent sales tax proposal was drafted by labor and environmental groups to provide early funding for the San Diego Association of Governments’ $160 billion long-term transportation proposal.

A series of court rulings in recent years have changed the equation of raising taxes by initiative, resulting in an unusual and somewhat awkward arm’s length relationship between the petitioners and the officials who designed the transportation plan. in common.

Proponents say the plan could revolutionize transport across the region for the better, while critics call it a waste of money that doesn’t spend enough money on road improvements and automobile travel – the way to current transportation used by the vast majority of San Diegans.

The merits of this plan aside, the potential funding of this and other government projects and operations could be the real game changer. For decades, the widely accepted legal interpretation was that raising California local taxes for a specific purpose such as transportation required the approval of two-thirds of voters.

Three appeals courts have upheld rulings that the high threshold only applies to measures proposed by government agencies, while citizens’ initiatives to raise taxes – even for the same purpose – would now only require a simple majority.

There is a catch. Government agencies cannot or are not expected to be involved in the initiative process. Elected officials and civil servants can be, but only as private citizens. It seems like a pretty blurry line.

But at least outwardly, there was a healthy dose of caution before crossing that line. If, following a legal challenge, the courts determine that a citizens’ initiative approved by a simple majority was in fact a government-sponsored measure, the tax could be scuttled.

While not a tax issue, San Diego’s 2012 voter-approved Proposition B to scrap municipal employee pensions was overturned largely because the courts ruled the initiative had official city imprimatur and therefore required consultation with groups of employees, which did not occur. .

Majority citizen tax initiatives for government taxes require a careful dance between outside groups and government officials. There were suspicions that the SANDAG tax — let’s call it what it would have been — and San Diego’s proposed 2020 hotel tax increase involved improper coordination. No real accusations or evidence have surfaced.

Still, the process has a bit of a sleight of hand. It is as if we had to believe that the two allied parties knew by a kind of osmosis what the other wants or does. Some SANDAG staff said they learned a lot about the “Let’s Go! San Diego transportation tax proposal on the group’s website.

If the tax were passed and approved, there is the question of what would happen if SANDAG’s grand plan changed, as one would expect in a transportation system that spans a few decades, and proponents of the tax doesn’t like it or the initiative isn’t flexible enough to accommodate it.

That’s moot at this point because the San Diego County Registrar of Electors determined in June that signatures for the tax proposal were well below. Still, fans said they would be back. This proposal was the first of several tax increases needed for the SANDAG plan. The lower voting threshold is certain to trigger more citizens’ initiatives to raise taxes for other government agencies.

Coronado Mayor Richard Bailey sits on the SANDAG board and criticizes both the transportation plan and the method of financing.

“It’s a terrible way to govern,” he said. “It makes politics so difficult.”

Bailey and other like-minded people have said SANDAG should have put its own tax measure on the ballot, but that proposal never made it to the full board. Such a move would have required a two-thirds vote, a potential roadblock to the transportation plan.

“One of two things is true,” he said. “Either SANDAG was grossly negligent in not putting their own measure on the ballot for a mission-critical transportation plan, or they tried to circumvent election law, which is illegal.”

There is another way of looking at things.

Unless people cross that fuzzy line – and no one says they actually did – the courts have declared what was attempted to be permissible. This is electoral law today.

Despite my previous caveats, the majority and staff of the SANDAG board could have been seen as wisely stepping back and letting outside groups carry the tax burden, giving the transportation plan a better chance of getting the funding needed.

Whether there was any coordination between them is a matter of speculation, but mostly among political insiders.

Some of this suspicion arose during the effort to draft, qualify and pass Measure C, the 2020 hotel tax initiative to fund the downtown convention center expansion, programs for homelessness and road repairs – all government spending projects.

A coalition of the tourism industry, unions, housing advocates and others spearheaded the initiative. This was done, in part, in the hope that a majority approval threshold would stand if they did not get a two-thirds vote. The measure fell a hair’s breadth from the latter – 65.24% of voters backed it – and the city is debating whether the measure should be considered approved.

Certain San Diego city officials, particularly then-Mayor Kevin Faulconer, were clearly kept abreast of the development of the ballot proposal and their views were known to the drafters. This didn’t seem to matter to the public, as Faulconer had long been identified with the proposal.

Stepping back, there is a disconnect that is rarely discussed: the legislature and governor can win voter tax approval with a simple majority, but local governments cannot.

Bailey is right that this is no way to govern. It’s a complicated process and the laws should probably be changed. The solution is simple, though it may not have wide support: remove the two-thirds threshold entirely.

Vital issues of government funding should not be determined by one-third plus one voters, no matter who makes the proposal. Raising taxes should be like most other measures on the ballot: the side with the most votes wins.

Tweet of the week

Go to Schooley (@Rschooley), “average against the machine.”

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